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Entries in Retaliation
(13)

Gentle reader, as you know, the manager rule is a common defense to whistleblower or retaliation claims and holds that a management employee who disagrees with or opposes their employer’s actions in the course of their normal job performance, does not engage in protected activity. Instead, it is only when an individual crosses the line from being an employee performing their job, to one essentially lodging a “personal” complaint, that they engage in protected activity.

Update regarding an issue we’ve previously blogged about. The Eighth Circuit assumed without deciding that individuals can sue for retaliation or discrimination under Title VII based on their association with a member of a protected class.

The Second, Fifth, Sixth and Eleventh Circuits have explicitly ruled the statute permits “associational discrimination” claims. Following a ruling from the U.S. District Court for the Eastern District of Arkansas, in Hutton v. Maynard, the Eighth Circuit assumed without deciding that Herman Hutton, the white former police chief of England, Arkansas, engaged in legally protected conduct when he sought to promote a black woman to a supervisory position. As the Court put it, “It is unclear whether Hutton also attempted to assert a claim of associational race discrimination separate and distinct from his claim that he was terminated in retaliation for seeking to promote an African American staff member. Even if he did, our analysis would not change. Hutton’s desire to promote an African American is the only ‘association’ he asserts and is the only purported statutorily protected activity at issue.” (Emphasis supplied.) (Ultimately the Court concluded that Hutton could not connect that conduct to the decision to fire him.)

We’ll continue to monitor this issue, but the trend looks like it’s moving towards recognizing associational discrimination as a viable Title VII claim nationwide.

Yesterday marked the end of the Spring/Summer 2016 fashion shows in Milan. Some of next year’s fashion has been described a “lyrical nerdiness,” “romantic” and “pink and pretty”—so keep your eyes pealed for those trends next year.1 But while my love for clothing is a priority, it’s not the topic of this blog post—although Armani is a key player.

Earlier this month, Giorgio Armani’s former general counsel, Fabio Silva, filed suit against the company alleging discrimination against him because of his Mexican heritage and later fired him after finding out he had colon cancer. Mr. Silva filed the action in New York Supreme Court alleging that an Armani executive told him that he “doesn’t trust mexicans” and treated him unfairly as a result of his nationality.

The Sixth Circuit Court of Appeals just potentially opened up a big ole can of employer liability.

In EEOC v. New Breed Logistics, the Court affirmed its prior decision that for purposes of a retaliation claim, a complaint to a supervisor that he stop his sexually harassing conduct – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity under Title VII. The opinion recognized that other courts have concluded that a complaint directed solely to a harassing supervisor does not constitute protected activity - and rejected it, holding that if “the other elements of a prima facie case are present, a harassment claim only becomes a retaliation claim if, after the harassee opposes the harassment, the harasser initiates adverse action against the victim. Thus, giving retaliation victims protection where they complain to the harasser will not morph all harassment claims into a retaliation claim, absent some materially adverse action.”

As we near Father’s Day, Ferguson v. Fairfield Caterers, Inc., serves as an appropriate case to remind employers of the many facets of a retaliation claim—including the personal liability that attaches. Kelli Ferguson and her father worked for Defendant until early 2010. Ferguson’s father, Kevin Heslin managed wedding sales and promotions and Ms. Ferguson, who had worked for Defendant for over two decades and had worked her way up from part-time coat check attendant, was the general manager of the operations—overseeing her father, among other employees. In late 2009, Defendant’s ownership met with Ms. Ferguson and recommended that it was time for Mr. Heslin to retire because he was “too old” and brides could not relate to him. Mr. Heslin’s employment with the company terminated in January 2010, on his 71st birthday, and he soon after filed a complaint with the Connecticut Commission on Human Rights and Opportunities, alleging his termination was based on his age in violation of law.